Ennis
Brown, who is proceeding without a lawyer, filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C.
§2254. Dkt. No. 1. He has paid the $5.00 filing fee. The
case now is before the court for screening pursuant to Rule 4
of the Rules Governing §2254 Proceedings.

I.
BACKGROUND

In
Milwaukee County Circuit Court, the petitioner was convicted
of multiple sexual-related crimes. Dkt. No. 1 at 2. The
petitioner alleges that he presented the issues raised in his
petition to the Wisconsin state courts. Id. at 3, 4,
5. It appears that he received no relief from the Wisconsin
trial or appellate courts, and the petitioner alleges that
the Wisconsin Supreme Court denied his petition for review.
Id. at 3. While the Wisconsin courts were reviewing
his appeals, he filed a petition for habeas relief
in federal court. Brown v. Pollard, Case #14-CV-872,
Dkt. No. 1. Because his state appeals were pending at the
time he filed the habeas petition, Judge Clevert
denied the petition without prejudice, indicating that the
petitioner could re-file once he'd exhausted his remedies
in state court. Id. at dkt. no. 33. This current
petition is the post-exhaustion petition.[1] Dkt. No. 1.

The
petitioner alleges that he was convicted and sentenced in
violation of his federal constitutional rights under the
Fourth and Sixth Amendments, and he alleges four grounds for
the petition. He alleges that he was arrested without a
warrant, in violation of the Fourth Amendment's due
process protections. Id. at 8. He alleges that state
failed to charge him or bring him before a judicial officer
within forty-eight hours, and denied him a speedy trial.
Id. at 12-25. As part of that ground, he also
alleges that he was denied his right to open and public
proceedings. Id. Finally, he alleges that he was
denied effective assistance of counsel under the Sixth
Amendment. Id. at 26-31. Finally, he alleges a
“miscarriage of justice, ” summarizing the claims
in the prior three grounds.

II.
THE PETITIONER MAY PROCEED ON SOME OF THE CLAIMS IN HIS
PETITION.

The
court now will review, or “screen” the petition.
Rule 4 of the Rules Governing §2254 Proceedings states:

If it plainly appears from the face of the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner. If
the petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other response
within a fixed time . . . .

A court
must allow a habeas petition to proceed unless it is
clear to the court that the petitioner is not entitled to
relief in the district court.

At the
screening stage, the court expresses no view on the merits of
any of the petitioner's claims. The court reviews the
petition only to determine whether the petitioner has stated
claims of a type that are generally cognizable on
habeas review. The petitioner's Sixth Amendment
speedy trial and ineffective assistance/denial of counsel
claims generally are cognizable on habeas review.
The court will allow the petitioner to proceed on those two
claims.

The
petitioner's Fourth Amendment habeas claim
regarding unlawful detention and arrest generally is barred
in a federal habeas case. The Supreme Court held in
Stone v. Powell, 428 U.S. 465, 495 (1976) that if a
criminal defendant had a full and fair opportunity to
litigate a Fourth Amendment claim during his criminal trial,
a federal court may not grant him habeas relief
“on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his
trial.” It is not clear to the court whether the
petitioner tried to litigate his Fourth Amendment unlawful
arrest/detention claim in his state criminal trial, or
whether he had a full and fair opportunity to do so.
Therefore, even though such claims usually are barred on
habeas review, the court will, at this early stage,
allow the petitioner to proceed on his Fourth Amendment
claims.

The
court will not, however, allow the petitioner to proceed on
his “miscarriage of justice” claim (the fourth
ground he raises). The “miscarriage of justice”
claim is not a substantive constitutional claim that a party
can raised in a habeas petition. Rather,
“miscarriage of justice” is a defense that
sometimes may apply when a petitioner has failed to exhaust
his remedies on some other substantive claim. If a petitioner
fails to exhaust state court remedies on a substantive claim,
he may be able to overcome that failure if he can prove that
there would be a “miscarriage of justice” if the
court failed to grant the petition. Usually the petitioner
has to demonstrate, through evidence, actual innocence to
overcome such a failure. Because “miscarriage of
justice” is not a substantive claim that a petitioner
may prosecute, the court will not allow the petitioner to
proceed on his fourth claim.

III.
CONCLUSION

The
court ORDERS that the petitioner may proceed on the first
three (3) grounds identified in his petition-his Fourth
Amendment unlawful seizure/detention claim, his Sixth
Amendment speedy trial claim, and his ...

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